October 31, 2007

Maybe There's a Real Racist on Columbia's Campus

I wonder if Michelle Malkin & Friends will have the same "the 'victim' is the perpetrator" response to a swastika put on a Jewish professor's door that they did to the noose hung on an African-American professor's door. From the office of Student Services:

In an effort to keep you informed of campus news as soon as we become aware of it, we wanted to let you know that we received word that earlier today a swastika was found spray painted on a Jewish professor's door at Teachers College. The police were summoned and the door itself has been removed. It is most disappointing to hear that incidents of this nature continue to occur in the Columbia Community.

October 28, 2007

Today / 10.29.07

Flag-Folding for Falun Gong

Courtesy of the AFA, today's outrage against God and Mom is that the National Cemetery Administration now requires that families who want a Judeo-Christian flag-folding narrative recited at a veteran's burial arrange for it themselves rather than using the employees or volunteers of the federally-owned cemeteries. The 13-fold recital derives from local military traditions but is not in the Army Field Manual, not part of the U.S. Flag Code nor government-approved; it also imprecisely quotes Stephen Decatur's toast as "Our country, in dealing with other countries, may she always be right; but it is still our country, right or wrong." Nearly half of the recitation has implicit or explicit religious meaning:

The second fold is a symbol of our belief in the eternal life. ...
The fourth fold represents our weaker nature, for as American citizens trusting in God, it is to Him we turn in times of peace as well as in times of war for His divine guidance. ...
The sixth fold is for where our hearts lie. It is with our heart that we pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all. ...
The eleventh fold, in the eyes of a Hebrew citizen, represents the lower portion of the seal of King David and King Solomon, and glorifies, in their eyes, the God of Abraham, Isaac, and Jacob.
The twelfth fold, in the eyes of a Christian citizen, represents an emblem of eternity and glorifies, in their eyes, God the Father, the Son, and Holy Ghost.
When the flag is completely folded, the stars are uppermost, reminding us of our national motto, "In God we Trust."

If you're wondering where the outrage against Mom is, it's that the eighth and ninth folds are gone along with the rest:

The eighth fold is a tribute to the one who entered in to the valley of the shadow of death, that we might see the light of day, and to honor mother, for whom it flies on mother's day.
The ninth fold is a tribute to womanhood; for it has been through their faith, love, loyalty and devotion that the character of the men and women who have made this country great have been molded.

As an afterthought, "The tenth fold is a tribute to father, for he, too, has given his sons and daughters for the defense of our country since they were first born."

Some veterans may not believe in the Abrahamic tradition, or in God or an eternal life, and therefore reciting those words over their graves should not be standard practice for a representative of the government. Moreover, the government shouldn't be getting involved in veterans' religious beliefs one way or another. I don't want to pay for paid staff or volunteers from the VA to learn how to represent the beliefs of Muslims, Wiccans, etc. Let the families and others who actually knew the deceased make the appropriate religious observance. The government's role should be of promoting patriotism and respect for military service -- not Judaism, Christianity, deism or a belief in the after-life.

Dependents, Parents and Benefits

Writing about INS v. Nguyen several years ago, I remarked, "A great joy and burden of maturity consists in using one's own powers to care for another who is weaker, whether the person receiving the care is an ill senior citizen or a healthy infant." Partly due to the modern Western assumption that a family consists only of parents and children (albeit now updated to include single, step, adoptive and gay parents), the word "dependent" to most Americans is synonymous with child, or perhaps child + spouse. Many of the benefits seen as favoring only parents, however, are in fact open to other workers who take care of another person.

The choice to take such care is a sensible one to encourage through tax breaks and other incentives; the more people who receive their care from family, the fewer people who become a burden on the state. Admittedly, raising one's own biological children doesn't fit precisely with this rationale, because those children probably wouldn't exist in the first place unless one decided to have them. So perhaps the state legitimately could reserve benefits only for people not caring for the offspring they had created themselves. In any case, the benefits afforded to caretakers -- the tax credits, the time off from work to take the dependents to the doctor, etc. -- are in the interests of society as a whole. In Slate, William Saletan clumsily summarizes the caregiver vs. non-caregiver argument, but as usual, sees it simply as parent vs. non-parent:

Employee benefits are shifting as marriage and parenthood decline.
Data: 1) 42 percent of U.S. adults are now unmarried. 2) In 35 years, the proportion of unmarried women who marry each year has declined by half. 4) In 40 years, the proportion of households that have kids under 18 has declined from almost half to less than a third, and soon it'll fall to a fourth.
Single/childless complaints: 1) Parents get more freedom to leave work than we do. 2) The work they leave undone gets dumped on us. 3) They get paid better. 4) Company benefits are designed for them, not us.
Result: As the balance of power shifts away from parents and married couples, companies are rethinking the distribution of hours, salaries, and benefits. (Related: Most American women no longer live with a husband, and married couples are no longer a majority of U.S. households.)
Single perspective: We want "equal respect for nonwork life." Parents' perspective: Our nonwork life is more important than yours. Human Nature's view: Now that I'm a parent, I see that the parents are right.

This opposition of "single" and "parent" nonwork life is silly. Single people can and often do act as caretakers, whether on a longterm basis (as for a parent or sibling) or on a consistent, recurrent basis (as a volunteer for strangers) and whatever assistance they need to perform this caretaking should be given equally to them as to people whose caretaking is defined by the parental role. Neither group's "nonwork life," in the sense of things they do that mostly benefit themselves (going to the movies with or without kids, taking a vacation with or without kids), deserves special consideration.

That said, not expecting people to do the same amount of work in order to receive the same pay is quite odd. I can't believe that a law firm associate who is a parent and didn't manage to bill the same number of hours as an associate with no family responsibilities would earn the same amount of money or receive the same opportunities for promotion as the latter, and other fields should take the same attitude. Parents shouldn't be assumed to be slackers, but neither should they get paid for work they didn't do. Our society and workplaces can be supportive of caring for dependents without paying people to do it instead of their market work. If you want to be paid to take care of people, become a foster parent or a home health nurse; don't expect your employer to compensate you for time you spent on your home responsibilities instead of your office duties.

October 26, 2007

Kansas Has a Claim

Critiquing Paul Krugman's new book quite well, historian David M. Kennedy makes a small error: "It’s a story that is as factually shaky as it is narratively simplified. (Kansas, whatever its other crimes and misdemeanors, is not customarily regarded as the birthplace of Prohibition..." Technically, given that Kansas was the first state to enact prohibition into its state constitution in the early 1880s, and then had a citizen-enforcer when Kansas resident Carrie Nation smashed her way through bars across the state, one reasonably could consider it the birthplace of the constitutional Prohibition movement.

UNRELATED except as to vice and politics: these pictures of politicians with the facing-multiple-criminal-charges founder of Girls Gone Wild remind me of another reason I would make a lousy politician: which is that I don't like having my photo taken much, and especially not with random people whom my aides shove toward me with the reminder that this is a campaign contributor. It's particularly jarring with Sen. Leiberman, who has made much of his opposition to sex and violence in entertainment.

Slaughter-House Revived for Another Francophone State

Despite the bad reputation that the concept of "state citizenship" has due to the Slaughter-House cases and measures to limit the rights of African Americans, I'm actually not entirely opposed to the idea that one may have national citizenship without having citizenship in a particular state, e.g. for the purpose of voting or running in local elections. Thus when a McGill friend alerted me to a "Quebec Identity" test required for naturalized citizens, this didn't strike me as horrifyingly as it did the Centre for Research on Race Relations (CRARR) and B'nai Brith Canada. Unless "running for political office, petitioning the government or fundraising for political parties" are rights that people normally have in Canada regardless of citizenship status, the latter's legal consel sounded a bit overheated:

It would inevitably create two classes of citizens, said Steven Slimovich, national legal counsel for B'nai Brith.
"You either have inalienable human rights, or you don't," he said Thursday. "You either have freedom of expression, freedom of assembly, freedom of religion, and so forth, or you don't.
"It cannot possibly be limited on the basis or the cultural views of any group in the society where you live."

Perhaps they run things differently Up North, but in my experience, "inalienable human rights ... freedom of expression, assembly, religion" are not tied to any kind of citizenship in any case. I have those rights in Canada without being a citizen, just as a Canadian would have them in the U.S. What neither has are certain political rights, specifically the rights to vote and run for office, and to some extent to donate to political campaigns. In Canada, one must be a permanent resident or citizen to be an eligible contributor.

A French-speaking province that has a certain degree of autonomy from the national government ought to be able to require that those who wish to have provincial citizenship rights to run and vote for local office be able to speak French. However, to avoid a racist implementation of the rule, a la the Jim Crow literacy tests, the language test ought to be administered by the national government rather than the provincial one. That is, when someone applies to become a Canadian citizen, he can take a language test at the same time as the regular citizenship test, and if he passes the language test automatically has Quebec citizenship. This helps to avoid a potentially biased implementation of the rule at the provincial level, in which immigrants of color -- even if they are from former French colonies -- are claimed to be insufficiently French-speaking.

Anti-Being-a-Merger-Target > Managerial Power

As part of my plan to take only classes that really interest me this last semester, I am taking a seminar on corporate governance, co-taught by Jesse Fried. Along with Lucian Bebchuk, he has promoted the idea that boards currently tend to be bad agents for the shareholders when it comes to getting good value, particularly in getting good performance from executives proportional to their pay, and that shareholders should be able to alter governance more easily. There do seem to be few instances where boards really turn on execs. Even when the board is showing a CEO the door after she's been a failure, on the way out she can get a golden goodbye in the form of additional compensation beyond that which was negotiated in the employment contract.

However, Merrill Lynch chairman and chief executive, E. Stanley O'Neal, may have found the surefire way to piss off his board: "Mr. O'Neal broached the possibility of a merger with Wachovia, the bank based in Charlotte, N.C., without first getting the approval of Merrill’s board, a major breach of corporate protocol at a time when directors were already concerned about the company’s performance, these people said. Merrill's board was so upset with Mr. O’Neal that it even discussed the names of potential candidates to replace him, according to people with knowledge of the board's proceedings."

Of course,

Any merger between Merrill, with 15,000 retail brokers, and Wachovia, with 10,137 brokers, would likely face antitrust questions, and a deal would not likely be received well by Merrill's brokers. In recent weeks, as the scope of the losses mounted, Mr. O’Neal has fired a number of executives, the latest round of firings he has made since taking the top job.
Merrill's stock has fallen almost 10 percent in the past two days as Mr. O’Neal has come under intense criticism for what analysts called a complete risk management failure. With billions of dollars shaved off of its market capitalization and analysts convinced that an additional write-downs might be coming, Merrill is an attractive target.

Reg State Concrete Conundrum

Sadly, Columbia no longer requires first year law students to take a course in the Foundations of the Regulatory State. Although the title sounds awfully boring, it's an excellent way to introduce students with no economics background to basic concepts of supply/demand and cost-benefit analysis, as well as nudging them toward thinking about unintended consequences to law. But this fact set could have made a nice exam question:

But making cement means making pollution, in the form of carbon dioxide emissions. Cement plants account for 5 percent of global emissions of carbon dioxide, the main cause of global warming. Cement has no viable recycling potential; each new road, each new building needs new cement.
Now, green incentives may be increasing pollution. The European Union subsidizes Western companies that buy outmoded cement plants in poor countries and refit them with green technology. But the greenest technologies can reduce carbon dioxide emissions by only about 20 percent.
So when Western companies revamp Eastern factories, the emissions decrease for each ton of concrete produced. But the amount of cement produced often goes way up, as does the total pollution generated. ...

Cement poses a basic problem: the chemical reaction that creates it releases large amounts of carbon dioxide. Sixty percent of emissions caused by making cement are from this chemical process alone, Mr. Luneau of Lafarge said. The remainder is produced from the fuels used in production, although those emissions may be mitigated with the use of greener technology.
"Demand is growing so fast and continues to grow, and you can't cap that," Mr. Luneau said. "Our core business is cement, so there is a limit to what we can change."

Carbon trading arrangements -- green incentives created by the European Union and the Kyoto agreement on curbing greenhouse gases -- encourage purchases in Eastern Europe and Russia by Lafarge and competitors, like HeidelbergCement. But they also allow manufacturers to increase total production, both in the developing world and at home.
The European Union effectively limits production of European cement makers in their home countries by capping their yearly emissions allowances. But there are no limits in places like Ukraine.
Moreover, European companies get increased emission allowances at home -- carbon credits -- by mounting green cleanup projects elsewhere. So buying an old Soviet factory and converting it to green technology can bring multiple paybacks.
"The investment is much more attractive than it used to be," said Lennard de Klerk, director of Global Carbon, a Budapest firm that brokers such carbon investments in Ukraine, Russia and Bulgaria. Factor the value of the carbon credits into the cost of refitting a factory in Ukraine, and the predicted rate of return rises to almost 12 percent from 8.8 percent, he said.

Though to really highlight the point, the question should be about whether we should mandate or incentivize revamping old factories if doing so would itself require concrete.

October 24, 2007

Don't Forget to Rip the Old Testament Out of Your Bibles

Several state lawmakers are returning copies of the Quran to a state panel on diversity after one lawmaker claimed the Muslim holy book condones the killing of innocent people.
In a letter to colleagues, state Representative Rex Duncan says "most Oklahomans do not endorse the idea of killing innocent women and children in the name of ideology." At least 17 other legislators have notified the Governor's Ethnic American Advisory Council that they too will return the gift.

From Numbers 31:14-18:

14: And Moses was wroth with the officers of the host, with the captains over thousands, and captains over hundreds, which came from the battle.
15: And Moses said unto them, Have ye saved all the women alive?
16: Behold, these caused the children of Israel, through the counsel of Balaam, to commit trespass against the LORD in the matter of Peor, and there was a plague among the congregation of the LORD.
17: Now therefore kill every male among the little ones, and kill every woman that hath known man by lying with him.
18: But all the women children, that have not known a man by lying with him, keep alive for yourselves.

Thinking Christians know that their religious tradition is not devoid of killing innocent women and children, and try to understand how God's command heard by Moses that the Jews slay the unrighteous can be distinguished from God's command heard by Muhammad that Muslims spread their religion by force.

Suggestion as Distribution

Here's an investigation that the prosecutor would be very stupid to charge:

TUSCOLA, Texas (AP) -- A popular English teacher has been placed on paid leave -- and faces possible criminal charges -- after a student's parents complained to police that a ninth-grade class reading list contained a book about a murderer who has sex with his victims' bodies.
Kaleb Tierce, 25, is being investigated for allegedly distributing harmful material to a minor after the student selected Pulitzer Prize-winning novelist Cormac McCarthy's ''Child of God'' off the list and read it.

Tierce's action fails to meet the elements required for the offense under Texas law (McCarthy's novels could only appeal to a minor's prurient interest in sex, nudity or excretion inasmuch as trying to get through them might occasion the minor to think "sex, nudity, excretion, anything's gotta be better than this"; Tierce has an education defense provided by the statute). The aspect of the possible criminal charge that befuddles me the most is the equation of suggestion = distribution. I could see how Tierce might get in trouble if he was handing out copies of books about necrophilia, perhaps, but merely suggesting that students read the book cannot be the same thing. If it were, the Radcliffe Publishing Course should be in trouble for every minor who picks up Lady Chatterley's Lover based on its list.

October 22, 2007

Piyush "Bobby" Jindal, the Consistent Conservative

I have been irked by many of those who oppose adding sexual orientation bias to the hate crimes laws, especially for their claims that if the bill becomes law, it will make merely expressing opposition to homosexuality a crime. No, it won't, any more than people who, say, tell Hindus that they're devil-worshipers have committed a crime under the existing laws that provide an extra penalty for crimes committed because of religious prejudice. I find this attempt to misrepresent the proposed legislation despicable, and am only slightly less contemptuous of the belief behind it, which is that no extra penalty should attach to committing a crime against someone because of her sexual orientation. However, I can respect the position that all hate-crime laws are wrong because they penalize the bias motive. (Saying that hate crime laws are unusual in penalizing a state of mind is inaccurate; we give greater penalties for a crime motivated by revenge than by obedience to another's direction).

Whether out of the genuine belief that we should not criminally penalize bias, or in order to appeal to the white voters who shunned him before*, the incoming governor of Louisiana apparently has taken the relatively principled position of opposing all hate-crime laws, not just the ones that include sexual orientation: "A born-again Roman Catholic, Mr. Jindal made a particular campaign target of these [deeply conservative northern and eastern parishes of Louisiana that once supported the Ku Klux Klan leader David Duke], visiting them frequently and bringing his brand of devout Christianity to their rural churches. His social-conservative message -- teaching 'intelligent design' as an alternative to evolution in public schools, a total ban on abortion, repealing hate-crimes laws -- would have been welcome in these areas."

Note to the Times: Don't you have to be born a Catholic in the first place in order to be a born-again Catholic? If you were born a Hindu and become a Catholic, that's called conversion. Y'all need to get the Southern stereotype shortcuts unjammed on your keyboards, at least when you're talking about brown folks.

But he is not a natural fit for Louisiana. The state likes its governors to know the fundamentals of the Cajun two-step, speak some derivation of French patois, and at least get to a duck blind, regularly and publicly. But Mr. Jindal has labored assiduously to overcome the disadvantage of being a non-Cajun, Rhodes Scholar policy wonk whose given name was Piyush, and who has a penchant for 31-point plans. ...

For months, the congressman has cultivated the rural areas where he lost in 2003, “witnessing” in remote Pentecostal churches, neutralizing his image of being hyperqualified -- head of the state health department at 24, head of the university system at 28 and under secretary for the Department of Health and Human Services at 30 under President Bush -- that did not help him the last time. In one recent debate, Mr. Jindal boasted that he had made 77 trips to north Louisiana since announcing his candidacy.

Insinuations about his excessive intellectual capacity are still being made. “It’s not going to be about the smartest person in this race,” Walter Boasso, a Democratic state senator and one of Mr. Jindal’s opponents, said recently. But such remarks do not seem to be catching on with voters apparently weary of bumbling at the Capitol in Baton Rouge and at City Hall in New Orleans.

This time, Mr. Jindal is aiming his multipoint plans at ethical reform in state government, schools and economic development, and attacks on his wonkishness have fallen flat.

October 21, 2007

Kentucky Abrogates Nudists' First Amendment Rights

In response to this post partly about Muslims Against Sharia's choice to remain wholly anonymous, Tom T. commented, "As far as MAS goes, their stance fits somewhat with the cases from the '60s where the NAACP refused to release its membership lists for fear of reprisals. I know you're not saying that MAS should be forced to reveal their members, but I just thought I'd point out that their position is part of our constitutional tradition." Some organizations apparently can be forced to reveal their members, however, as evidenced by one state law:

232.041 Inspection of society -- Register of members required.
Each licensed nudist society shall be subject to such reasonable inspection by the sheriff or deputies designated by him as may reasonably be deemed necessary to enforce KRS 232.010 to 232.041 and 232.991, and acting in a reasonable manner sheriffs or deputy sheriffs shall have the right to go upon the private property and gain access to the buildings or inclosures of licensed nudist societies. The owner, operator, or person in charge of a nudist society shall keep a register of names and addresses of members of the society which shall be made available for inspection by proper authorities upon order of the county judge/executive. History: Created 1968 Ky. Acts ch. 203, sec. 4.

Presumably the state has this power with regard to nudist societies because it constitutionally could refuse to license such societies at all; the above statute is listed in the "Public Safety and Morals" section of the Kentucky Revised Statutes. In return for the privilege -- not right -- of forming a nudist society, the leadership must turn over membership lists.

October 19, 2007

But Do Swear at Courts

PG's post below reminds us that many states still have their obscenity/disorderly conduct statutes in the books. However, while I'm not familiar with Chaplinsky, I am familiar with Cohen v. California, 403 U.S. 15 (1971).

On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested.

***
Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places.

***
In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of [20] instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.

***

While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not directed to the person of the hearer. [internal marks and citations omitted].

Of course Cal. Penal Code Sec. 445 remains in the books exactly as it was written at the time. I'd take the ACLU position on this one...or just pay the fucking fine.

Sometimes I Like to See Power Abused

After residing in New York for a few years, and particularly after needing to get through midtown quickly in order to reach an office on time, I find myself with little sympathy for Matthew Jones, who stood on a sidewalk in Times Square talking to a group of friends as pedestrians tried to get around them. My little bit of sympathy derives from Jones's committing this crime on at 2am on a Saturday morning in summer, which means most of the people he was inconveniencing were probably tourists and thus likely not to have been moving as quickly as they ought either. He who is without sin should throw the first stone, preferably as he power-walks past.

A police officer asked Jones to move; he refused. The officer arrested him on the charge of disorderly conduct, a "violation" and thus the lowest level of crime one can commit and still face possible jail time, maximum of of 15 days. Jones's behavior fell well within the text of the law: "He obstructs vehicular or pedestrian traffic; or he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." Nonetheless, the New York Court of Appeals appears to be made up of loiterers who are willing to say that there was no basis for his arrest.

Paula-Rose Stark, a Manhattan assistant district attorney, argued that the facts in the complaint were sufficient for the charge of disorderly conduct. Mr. Jones’s reckless intent, Ms. Stark said, was evident from the fact that his behavior was noticeable in the first place "amid the inevitable hustle and bustle of Times Square, the construction, the vehicular traffic."
...
And on Wednesday, Mr. Jones’s circumstances appeared to reach a friendly audience before the Court of Appeals.

"Isn't that lawful conduct?" wondered Judge Robert S. Smith. Later he added, "Your conduct can't be illegal just because an officer noticed it."

His colleague Judge Eugene F. Pigott Jr. questioned what other violations might attract law enforcement attention.
"All I could think of was a bunch of lawyers from the New York City Bar Association standing around trying to figure out where to have lunch," Judge Pigott said. (The association has offices a block and a half from Times Square.)

Chief Judge Judith S. Kaye seemed likewise nonplused. "This is at 2 a.m.?" she asked, wondering how many pedestrians it would have been possible to inconvenience at that hour. "I guess I'm not in Times Square at 2 a.m. very often."

Should the prosecution film what Times Square looks like on a Friday night in June?

October 16, 2007

Do Not Swear at Cops Even If the ACLU Says You Can

Herb doesn’t recall exactly what she said, but she admitted letting more than a few choice words fly near an open bathroom window Thursday night.
Her next-door neighbor, a city police officer who was off-duty at the time, asked her to keep it down, police said. When she continued, the officer called police.

Mary Catherine Roper, an attorney with the American Civil Liberties Union in Philadelphia, took issue with the citation.
"You can’t prosecute somebody for swearing at a cop or a toilet, she said.

See Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), in which a man was prosecuted for swearing at a cop:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

While LexisNexis claims that Chaplinsky has been superseded by statute, that's only true if a particular state has altered its statute to require a threat or some other element in addition to personally abusive epithets.

October 15, 2007

If I Worked at SRZ

Necessary and Unnecessary Evils

Reading about Evan Coyne Maloney's latest iteration of the conservative complaint that it is wrong to have race-based affirmative action at university admissions in the name of diversity, especially when there is no affirmative action in faculty hiring based on political affiliation in order to have intellectual diversity, reminded me of a discussion I had with a Republican who told me that I had "no problem" with affirmative action. On the contrary, I protested, I think affirmative action is a necessary evil, and would be happy to see it end once the goals it seeks to achieve can be reached without it. I figure Republicans feel this way about torturing detainees: if the detainees would talk without it, we could stop the water-boarding and rendition. However, I think affirmative action is slightly more likely to lead to a society in which no race needs a "boost," than torture is likely to lead to an end to terrorism. But one can have a reasonable difference of opinions on this, as evidenced by the conservative saw that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." I prefer David Schraub's less grandiose point: "The way to stop segregation on the basis of race is to stop segregating schools on the basis of race."

I would much prefer a substantial social and economic investment in ending the causes of certain groups' underrepresentation in Good Places (college, high-paying jobs, elected office) and overrepresentation in Bad Places (prison, poverty) than the Band-Aid fix of simply putting some into the Good Places even if they are not the most qualified, and not worrying about the many more in the Bad Places. If the most visible affirmative action opponents put an equal amount of energy into lobbying for sufficient health care, nutrition and education for children before they become potential college students or job applicants, such opponents might win over people who currently see them as careless about inequality.

For Maloney and other who are upset by the shortage of Republicans on college faculties, if someone professes to worry about diversity and discrimination, he ought to be concerned about a shortage of any group in any Good Place. I see it quite differently, perhaps because I can conceive of a less racial and more ethnic set of biases, as the selection biases that are held by the individuals who are deciding whether to enter a field. If, for example, some of the departments of a faculty are in areas that Republicans generally consider to be bunk, such as gender or race studies, then Republicans are unlikely to pursue a career in that field. In fields of study that conservatives and libertarians tend to take more seriously, such as the hard sciences, engineering, economics and business, they are present in numbers equal to or greater than liberals. In the employment field as a whole, Republicans certainly do not seem to be underrepresented in the top income quintiles, which seems to indicate that they are succeeding more than Democrats in some areas. In short, they do not seem to be overrepresented in the Bad Places as a whole.

While being a college professor isn't a stepping stone to much except perhaps being a college administrator, going to college is an almost necessary step to being middle class, and going to a well-ranked college and/or graduate school greatly smooths the way to jobs and connections that lead to the Good Places. Hence the U.S. military's support for affirmative action in admissions: they want officer candidates who are reflective of the enlisted soldiers. The military, of course, has a tremendous overrepresentation of conservatives, yet Democrats mostly don't seem to feel the need to demand politically-based promotions of liberal soldiers. That would be an unnecessary evil; there are enough Democrats broadly spread through the Good Places that there's no reason to take action to get more of them into a specific Good Place than come through their own desire and effort.

It's a bit like the workings of affirmative action in India*, which is a tremendous mess but does have a few bits of common sense, such as: there's no need for people from different geographic regions to be equally represented in all areas. The government worries about the lower economic position and discrimination against dalits and other "backward classes" because it believes them to be generally underrepresented in Good Places and overrepresented in Bad. While the caste affiliations more known to the West are based in a socio-economic hierarchy, geographic affiliation is arguably more important in cultural respects, because it affects everything from one's language to food to the particularly prioritized gods of Hindus' worship. It also tends to affect one's choice of career, an aspect brought into sharper relief when Indians immigrate to the U.S. and self-segregate into different careers based partly on cultural tradition. For example, Gujaratis are identified with business ownership, Telugus with engineering and medicine. Indians as a whole have been economically successful in the U.S., and I would find it ludicrous for, say, corporate franchising to give an advantage to Telugus in order to get more of them into business ownership, if they are already doing well in professional work.

* Has anyone heard of Bannahalli Hundi, a village that supposedly has only brahmins and dalits? That's a really weird town to have existed historically (it would be more explicable if artificially created), because of the very old associations between caste and occupation; it would be like having a town with only priests and street sweepers. And with regard to the brahmins withdrawing their children from a school that would have had a dalit cooking for them, I can say that people who really are priests -- and not just of the caste -- often refuse to eat food cooked by lower caste people, even middle-class castes.

October 11, 2007

Columbia is in national news again, this time not for giving a bigot a place to speak, but for acts of bigotry committed on campus. The first in a recent string of incidents was white supremacist graffiti in a bathroom at the School of International and Public Affairs; the second and the one receiving most attention was a noose hung on an African American professor's door; and the latest, according to a message from university president Lee Bollinger, is that "one of the bathrooms in Lewisohn Hall was sullied with an anti-Semitic smear." Perhaps because of his background as a First Amendment scholar (he continues to teach a class on Freedom of Speech and Press), Bollinger seems at pains to downplay the graffiti incidents: "When words are the offender, as in this incident, I am reluctant to draw attention to them and will exercise restraint in doing so going forward. I do not want to broadcast, in any way, the message they attempt to send or empower those behind them." In contrast, the noose is being treated almost like a burning cross, although liberals in law schools and courts tend to disfavor the automatic criminalization of any form of speech. Compare Thomas's and Scalia's opinions in Virginia v. Black that the burden of proving a lack of intent to intimidate should be on the defendant, with Souter's opinion joined by Ginsburg and Kennedy that cross-burning itself ought not be a crime when trespass and intimidation already are illegal, and O'Connor's and Stevens's insistence that prosecutors prove intent to intimidate as an element of the crime.

Despite news reports to the contrary -- "Police ruled out any possibility that the target of the attack had hung the rope herself. 'Our victim is a victim," Deputy Inspector Michael Osgood, commander of the hate crimes unit, said at a news conference Wednesday' -- severalconservativesalready are guessing that the professor must have done it. They link it to George Washington University students who put up posters on campus that headlined, "HATE MUSLIMS? SO DO WE!!!" advertised a real event on Islamo-Fascism Awareness, and included only in fine print "Brought to you by Students for Conservativo-Fascism Awareness." (I am not sure what is the element of racism against African Americans that the Columbia professor would be satirizing with a noose on her own door, but the connections made by Malkin and her ilk frequently are beyond me.)

In any case, what interested me about Bollinger's statement is the distinction he's drawing. It concludes, "In response to questions students have raised, I also want to reassure you that we have utmost confidence in our Public Safety officials and in the NYPD. Not only do they have well established communications protocols in place when there is an immediate threat of harm; they distinguish crimes that threaten our physical safety from incidents like the one that occurred today." What exactly does that mean? Obviously there's a difference between a completed crime against our physical safety (muggings, etc.), an attempted crime against same, and a threat of such a crime, but all seem to be in themselves "crimes that threaten our physical safety." However, even some expression that is not explicitly a threat -- that does not actually say And we're coming back to get you -- is treated as a crime. According to the Columbia Spectator, "New York State law says that incidents in which swastikas are used as graffiti will be considered investigated as aggravated harassment in the first degree, a more severe punishment than occurs for other forms of defacement." As far as I know, there is no such specific statute regarding nooses or the non-figurative graffiti directed against Muslims and African Americans. And yet the noose seems far more of a threat to physical safety than the graffiti, being targeted at a specific person and itself a method of killing particularly identified with lynchings against African Americans (the low-tech, real kind).

When the United States Is at War

Because I mostly avoid Michelle Malkin's and other blogs grounded in a team mentality (DKos would be similar on the left), I had missed the kerfuffle last year about some UC Santa Cruz students who had blocked military recruiters from a job fair on campus. While I think such blocking is unwise -- either the student body all feels the same as those protesters, in which case no one will sign up anyway, or some students are interested in military service, in which case the protesters are blocking an opportunity for their classmates -- I hadn't thought it was criminal. But so it was trumpeted to be on conservative sites such as Confederate Yankee, and their reading of 18 U.S.C. 2388 (a) reminded me of the ongoing disagreement between many liberals and conservatives on a fundamental legal question: is the United States currently at war? On a practical level, our military has been in active combat operations in Afghanistan since 2001, in Iraq since 2003. However, if someone were to challenge his prosecution under any of the several laws that apply only when the United States is at war, a court would have to make a legal determination as to whether we are at war.

(a) Whoever, when the United States is at war, willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies; or Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so - Shall be fined under this title or imprisoned not more than twenty years, or both.

Note that the obstruction of recruitment is a crime only when the U.S. is at war, whereas incitement to insubordination by a member of the Armed Forces is a crime at any time under 18 U.S.C. 2387. But to Confederate Yankee & Co., it goes without saying that the condition precedent for 18 U.S.C. 2388 -- that "the United States is at war" -- has been met continuously since 2001. I'm less confident. According to the historical notes on the Code,

The phrase "when the United States is at war" was inserted at the beginning of this section to make it permanent instead of temporary legislation, and to obviate the necessity of reenacting such legislation in the future. This permitted the elimination of references to dates and to the provision limiting the application of the section to transactions not yet fully barred. When the provisions of the War Contract Settlements Act of 1944, upon which this section is based, are considered in connection with said section 590a which it amends, it is obvious that no purpose can be served now by the provisions omitted.

In other words, these laws were written to keep the rules of WWII going for any later wars. Like most of our conflicts before it but none after, WWII was a declared war. Part of the failure to declare later conflicts to be "wars" may be attributable to our refusal in some cases to recognize the opposing side as a government. We did not deny that Mussolini, Hitler and Tojo/ Emperor Hirohito were the heads of state in Italy, Germany and Japan; we did not claim them to be merely the heads of factions. The United States sought the surrender of the Axis powers. In contrast, the U.S. did not recognize Kim Il-sung or Ho Chi Minh as the heads of state for Korea and Vietnam, and did not seek surrenders of those nations from them. Similarly, the U.S. (and most of the world) did not recognize the Taliban as the legitimate government of Afghanistan. Why the U.S. has not declared war in either the first or the second Gulf action does not fit into this explanation, however, because we treated Saddam Hussein as Iraq's head of state (especially when we were sending him aid against Iran).

Multiple criminal statutes rely upon that condition precedent. Take 18 U.S.C. 3287, which "[w]hen the United States is at war" suspends the statute of limitations on particular fraud offenses "until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress." If you believe that the U.S. has been at war since the AUMF, a physician who is alleged to have intentionally over-billed Medicare ("fraud or attempted fraud against the United States or any agency thereof in any manner) in October 2001 can be prosecuted for it until an indefinite point well into the future. Neither the President nor Congress shows any signs of saying that we have terminated hostilities* with all of "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," but even if they did so today, the doctor could be prosecuted three years from now. That the evidence of a crime over nine years old may be long lost -- part of the reason we have statutes of limitations in the first place -- is irrelevant. I can understand how a nation that is on a full-blown war footing may not have the resources to check against fraud until the cessation of hostilities, but the U.S. government does not seem to be in such a condition right now.

Other "when the United States is at war" criminal statutes include 18 U.S.C. 2153 (destruction of war material, war premises, or war utilities), 18 U.S.C. 2154 (production of defective war material, war premises, or war utilities), 46 U.S.C. 835 (restrictions on transfer of shipping facilities during war or national emergency). Unlike Sections 2388 and 3287, these also apply "in times of national emergency as declared by the President or by the Congress."

(b) Limitation on Sale of Guns and Ammunition.— Sales of guns and ammunition authorized under any law shall be limited to—
(1) other departments of the Government;
(2) governments of foreign countries engaged in war against a country with which the United States is at war; and
(3) members of the National Rifle Association and of other recognized associations organized in the United States for the encouragement of small-arms target practice.

But enough of that; too much time with the Code leaves me feeling like I've been peering through the window of a sausage factory.

* There's a further separation-of-powers complication, in that Congress's saying it thinks the President ought to terminate hostilities may not be the same as the actual termination of hostilities. Cf. Termination of Hostilities in Indochina, Pub. L. 92–129, Sept. 28, 1971, 85 Stat. 360:

It is hereby declared to be the sense of Congress that the United States terminate at the earliest practicable date all military operations of the United States in Indochina, and provide for the prompt and orderly withdrawal of all United States military forces at a date certain subject to the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government, and an accounting for all Americans missing in action who have been held by or known to such Government or such forces. The Congress hereby urges and requests the President to implement the above expressed policy by initiating immediately the following actions:
(1) Negotiate with the Government of North Vietnam for an immediate cease-fire by all parties to the hostilities in Indochina.
(2) Negotiate with the Government of North Vietnam for the establishing of a final date for the withdrawal from Indochina of all military forces of the United States contingent upon the release at a date certain of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government.
(3) Negotiate with the Government of North Vietnam for an agreement which would provide for a series of phased and rapid withdrawals of United States military forces from Indochina subject to a corresponding series of phased releases of American prisoners of war, and for the release of any remaining American prisoners of war concurrently with the withdrawal of all remaining military forces of the United States by not later than the date established pursuant to paragraph (2) hereof.

I wonder how incredibly poorly a military action has to be going for Congress to stop passing mere resolutions and instead pull the funding.

October 10, 2007

The Government Is Not You

When I get the American Family Association's emails alerting me to the latest outrage committed against Mom and apple pie, I usually read them, want to do the exact opposite of whatever they're advocating (which means that my next car is going to be a Ford, no matter how crappy the vehicles are) and then ignore them. Their latest crusade, however, is one being pursued at the highest levels of government: for the right of a 17 year old Eagle Scout to have the federal government write his religious note to Grandpa. According to several House Republicans, if a constituent requests a flag flown over the Capitol, and the Architect of the Capitol doesn't send a typed certificate for the flag with everything the constituent wanted on it, the solution is not to handwrite that message personally. No, that would be like expecting students in public schools to pray on their own time instead of having a special prayer time carved out of math class. Americans can't just exercise religion for themselves; they need the government to do it for them.

So the first email from the AFA yesterday notified me that the Architect had spat in the apple pie by refusing to put religious references in the certificate, but that the GOP was on the case. I was going to ignore the story, and then today I got a second email telling me, "Instead of stopping the censorship, Pelosi defended it. 'It's not about being anti-religion,' Pelosi said. 'It is just about what the Architect thought was appropriate for him to proclaim in a certificate.' By saying such, Pelosi approved the banning of religious references by Ayers." Of course, Architect Ayers neither can nor did ban religious references from being made on these flag certificates. As far as I know, nothing precludes someone from adding whatever he wants to the certificate. Indeed, the flag form from at least one Senate office does not have a space for a specific message, only for the name of the person/organization to whom the flag is being given, the special occasion being commemorated, and the specific date on which the purchaser wants the flag to be flown.

I don't expect much from the AFA, but again I'm disturbed that people who ought to know better are using the same kind of misinformation as the AFA. Republican Reps. Michael R. Turner of Ohio, Steve King of Iowa, Marilyn Musgrave of Colorado, Randy Neugebauer of Texas and Steve Pearce of New Mexico sent Pelosi a letter declaring that the rule against having religious expressions typed onto the certificate "censors our citizens' right to expressions of their faith." The certificate is not typed up for citizens' expressions of their faith, politics or any other belief; it's to give the information about when, for whom and why the flag was flown over the Capitol. Any citizen who wants to express his faith on the certificate can do so himself instead of demanding that the government do it for him.

The Salon author must have a somewhat superficial understanding of civil rights history if he can simply say, "The Civil Rights Act of 1964 provided a large umbrella of rights based on race, religion, sex and national origin," without noting that sex actually was inserted as a way to kill the legislation. Women had to sneak in on African Americans' coattails. In contrast, the transfolk discrimination issue is a lot more similar to LGB people's than women's to that of racial minorities. Whether you're L, G, B or T, it all comes down to being discriminated against for something that would be OK if you were a member of the opposite sex.
In the case of gays, it would be OK to like men if you were a woman; in the case of lesbians, it would be OK to like women if you were a man; in the case of male-to-female trans, it would be OK to wear lipstick if you were born with a vagina; in the case of female-to-male trans, it would be OK to have a buzz cut if you were born with a penis.
And a lot of what is called sexual orientation discrimination actually commingles with gender expression; the lesbian is given a hard time before she ever says, "I like girls," because she fails to follow a feminine convention such as wearing makeup or having longer hair. In my opinion, an ENDA that includes gender expression is simply more coherent. For that matter, a prohibition on sex discrimination that had included what ENDA does would have been more coherent.

We Can Afford the $75,000, Really

Even after admitting that he was too "glib" in his initial post saying it was "Tough Luck" for a German citizen who was kidnapped and tortured by U.S. government agents who had mistaken him for a terrorist, Captain Ed continues to maintain that "the US can't just allow people all over the world to sue our intel operations to a standstill. It's not the optimal situation, but we do have a national interest in keeping personal-injury lawyers from wrecking our homeland defense systems. That to me outweighs the interest of Masri and the precedent his suit would have set."

What exactly does "sued to a standstill" mean in legal terms? According to Captain Ed's post, el-Masri was "demanding an apology from the Untied [sic] States and 75,000 dollars in compensation." That doesn't sound like an injunction or any other type of interference in the CIA and other intel operations' workings. They can keep kidnapping and torturing anyone they like even if el-Masri wins his suit; they just have to apologize and fork over the cost of a single luxury car to each person whom they get wrong. I devoutly hope that the number they're getting wrong is small enough that $75k to each of them won't bankrupt our defense budget.

If the concern is what would be revealed in a trial where there's a real dispute over whether the CIA got it wrong or not (i.e. whether there was reason to suspect the plaintiff or if this was a true mistaken-identity screwup), the U.S. courts could set a rule that in cases where there's a factual dispute as to whether the plaintiff is in fact under suspicion, the court will refuse the case. However, in cases where the U.S. government would concede at a summary judgment point that it screwed up and the only remaining factual question is the appropriate level of damages, plaintiffs ought to be able to go to trial.

As for the jurisdictional question, we let non-citizens come to the U.S. to sue other governments for their misdeeds under the Alien Tort Statute/ Alien Tort Claims Act and Torture Victim Protection Act. Where should they sue the U.S. government if not in U.S. courts, particularly given the Federal Tort Claims Act? The United States can afford to pay the victims of our mistakes; we cannot afford another datapoint for the perception that we are indifferent to whomever we trample in trying to protect ourselves.

With This Ring, I Thee Deduct

But one expert, Darryl D. Nirenberg of Patton Boggs, has researched a particularly knotty situation and believes it may change Washington's dating rituals forever.
The ethics law bars lobbyists from giving gifts to lawmakers or their aides. What happens, then, if a lobbyist wants to give a staffer a very special gift -- an engagement ring? Is that allowed?
No, it's not, Nirenberg says. But that's not the end of the story. A senator can grant a waiver of the gift ban, subject to review by the ethics committee. In the House, the Committee on Standards of Official Conduct can waive the rule, and does so routinely.
"So, if you want to give your girlfriend who works in the Senate an engagement ring, you are going to have to ask permission from not only her father, but also from her senator, and maybe from the ethics committee, too," Nirenberg says.
Now that's what I call congressional privilege!

I haven't been able to quickly turn up the text of the Congressional ethics law in question, but if it is similar to New York State's, the engagement ring or any other gift shouldn't be a problem unless it is reported as a business expense. A lobbying firm can deduct the expenses that are part of its business, and thus one ought to be able to distinguish between an expensive meal that is bought for an aide in order to further one's lobbying interests (tax-deductible yet impermissible) and one that is bought for an aide in order to further one's romantic interests (not a business expense and therefore OK). Otherwise there would have to be severe policing of all lobbyist-Senate interactions; someone who works as a lobbyist couldn't even give a Senate aide who is the best friend of the lobbyist's daughter's a wedding gift.

October 05, 2007

Alabama Was PC Before PC Was Cool

Appellee Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guard, called in Alabama a "correctional counselor." ... A correctional counselor's primary duty within these institutions is to maintain security and control of the inmates by continually supervising and observing their activities. [fn 8]

[fn 8] The official job description for a correctional counselor position emphasizes counseling as well as security duties; the District Court found: "[C]orrectional counselors are persons who are commonly referred to as prison guards. Their duties primarily involve security rather than counseling."

October 03, 2007

Defamation and Religion: the Story of Jamal Miftah

One of the OKC Muslims wrote an op-ed criticizing Islamic terrorism in general and al-Qaeda in particular. Since then he has been kicked out of the local mosque and threatened with violence. This story was not widely publicized because it doesn’t fit into MSM agenda, but it made CBN and some blogs. Considering the shitstorm we created by admitting that the Koran is not perfect, what do you think would happen to us if our identities ever made public?

Because the incident in question took place in Tulsa, not Oklahoma City, it took me a little while to figure out what MAS meant, but I eventually found an excellent archive of posts on the topic of Jamal Miftah at Batesline.

Miftah published a piece in the Readers Forum of the Tulsa World, in which he describes a friend who volunteered to fight American forces in Afghanistan as "innocent." He makes generalizations such as, "Cowards like al-Zawahri and bin Laden are inciting the ignorant and innocent youths to commit suicide bombings to kill innocent civilians including children, women and the elderly, while they hide in spider holes and caves. They never send their own sons and daughters, born out of half a dozen of their wives, to get killed in the name of Islam." al-Zawahiri's wife, Azza, and their three children were reportedly killed in the December 3, 2001 airstrikes on caves near Jalalabad.

The beginning of the article admonishes, "'Islam' means submission and is derived from a word meaning 'peace.' Islam, Christianity and Judaism have the same origin, the Prophet Abraham. The prophet of Islam has said that God has no mercy on someone who does not have mercy for others." However, the article concludes, "I appeal to the Muslim clerics around the world that, rather than issuing empty fatwas condemning suicide bombing, they should issue a fatwa for the death of such scoundrels and barbarians who have taken more than 4,267 lives of innocent people in the name of Islam." He also states, "Even mosques and Islamic institutions in the U.S. and around the world have become tools in their hands and are used for collecting funds for their criminal acts. Half of the funds collected go into the pockets of their local agents and the rest are sent to these thugs."

Perhaps resenting the implication that it was a tool in bin Laden's hand, the Islamic Center of Tulsa forbade Miftah from worshiping there until he took back what he wrote. Ali Eteraz, a critic of Islamic extremism who writes under his own name (as do members of the Free Muslim Coalition), interviewed Miftah and reported that Miftah's article led "certain members within the Islamic Society of Tulsa to call him an 'agent,' a 'traitor,' and an 'anti-Muslim' and to ban him from the mosque. The reason behind the IST's apprehensivenss? As one of its leaders said to Miftah: 'you can't write bad things about Muslims in front of non-Muslims.'"

Yet in the interview, "when [Etaraz] asked him whether he was concerned about any reprisals from 'the Muslim community' he was quick to say 'no, not the Muslim community, because I too am a Muslim, but from Al-Qaeda sympathizers.'" Etaraz adds, "He certainly feels betrayed and angered by the fact that he was called numerous names by the IST and pushed out. However, instead of taking any aggressive actions, he has simply reiterated to the mosque leadership that he is not going to rescind his article; he is not going to apologize for what he said; and in fact, he is going to wait for them to apologize to him for mistreating him."[1]

Perhaps becoming embittered by the IST's claims that he was expelled for being audibly disruptive, Miftah wrote to the Tulsa World saying, "I am also surprised why office bearers of IST are so defensive about channeling funds to illegitimate organizations by them. My article does not say anything to that effect by IST mosque in Tulsa, rather it was reference to the mosque in Brooklyn (Al-Farooq Mosque), New York, California, Albany, New York, Bridgeview, Illinois, Allentown, Pennsylvania, and one in Texas, and the result of investigation on the London bombing plot, leading its trails to funneling of earthquake donations collected in Britain to the terrorists involved. I have not yet made any allegation about IST on this count, yet some of their activities that I am aware of and have evidence certainly create doubts about legality of some of their activities."

In a March 2007 interview with Frontpage, Miftah reiterates his belief in the innocence of Pakistanis who crossed into Afghanistan in order to fight U.S. forces, "During the course of time, ordinary people including myself realized that all the leaders made it back to their homes safe and sound, whereas a number of the ordinary men never returned. They either got killed or were held for ransom by Afghans and possibly the Taliban." Or they're in, um, Guantanamo Bay. Miftah also stated, "It now makes me believe, from the kind of response and the treatment that I received, that there are elements within the mosque leadership who have sympathies for terrorist organizations like Al-Qaeda. To root out and expose such elements we need moral support from organizations like yours and also legal help to prosecute such rogue elements."

Miftah concluded that he wanted help in pursuing a court case against the IST, and had contacted the ACLU but they said they didn't have the funds for his case. (Given that a private religious organization cannot violate the First Amendment and therefore is free to kick anyone out for his speech, I suspect this was the ACLU's polite way of saying that they didn't believe Miftah had a constitutional case.) Unsurprisingly, the history Ph.D and non-lawyer interviewing Miftah replied, "Trust me, the ACLU doesn't have scarcity of funds for all kinds of things. They just don't have any funds to support a moderate Muslim against radical Islam."

Notwithstanding his own highly public remarks accusing the IST's leadership of legally dubious activities and sympathy with Al-Qaeda, in June 2007 Miftah filed suit against the IST for assault, defamation, and intentional infliction of emotional distress. The two paragraphs copied on the Batesline blog sound like a questionable legal theory:

24. The acts of Defendants, individually and jointly, are outrageous in that Defendants knew that if they labeled Jamal Miftah a "traitor… anti Muslim and anti Islamic" his life would be forfeit should he be found in a Muslim Country and labeled apostate and that he would live in constant fear and dread of vigilante “justice” from certain Muslims in the United States.
25. The acts of Defendants are the proximate cause of severe emotional distress in that Jamal Miftah is now labeled as apostate, forced along with his wife and four children to attend to prayers in their home, apart from the fellowship of other Muslims, prevented from traveling to any Muslim Country, including his homeland of Pakistan and robbed of his peace of mind and right to speak freely against those he believes have brought his faith into disrepute via attacks on his adopted homeland and other acts of terrorism.

So now no Muslim can accuse another of being "anti Muslim and anti Islamic" without legal liability? I don't think an American court sensibly can import theocratic norms into its decisions on freedom of speech within the U.S. Perhaps it is insensitive and even morally reckless to make such statements if one knows the weight they may carry within a particular religious community, but our courts cannot force people to be silent in Tulsa (whether by injunction or through fear of further money damages) because of the reactions of people in Tripoli.

Moreover, in the U.S. calling someone a traitor to a religion is not an opinion that should be subject to legal penalty through a defamation claim. A traitor to the nation, yes, because such is a crime and accusing someone of a crime is inherently defamatory. But there is no crime in being a traitor to Islam. If this is the lawsuit Miftah wanted the ACLU to pursue, no wonder they said no -- it counters their stance on the First Amendment.

[1] I'm not going to assume that Etaraz's interpretation of words would track with mine, given his remark, "The last editorial in the New York Times which gave space to a Muslim to write on terrorism, on the other hand, was by a short story writer named Anar Ali who essentially said she could not be bothered with issues involving other Muslims (even as she played the Islam card to sell her anthology)." I didn't really get that from Ali's begging off from any expected expertise on terrorism:

Whether you want it or not, as a Muslim (secular and otherwise) you are automatically pulled into the debate on terrorism. Not that I don't want to discuss it, I do. But I want to discuss it as a citizen, not just a Muslim.
As a Muslim, people expect you to be an expert, to have special inside knowledge on the topic. They want your opinion on the issue, your help in explaining and analyzing complex political issues, the history of Islam, the psychology of suicide bombers.
I have no sense of what motivates a terrorist (except maybe as a fiction writer, since it's my job to enter the hearts and minds of characters). Terrorists and radical Islamists live in a different place from me, psychologically and culturally, even if they were raised in Canada just as I was. To better understand these young men and why they turn to violence as a means to an end, it might make more sense to ask someone who was a skinhead, a member of the Irish Republican Army, a Tamil Tiger, or a Weatherman.
If you asked me, I would have to speculate, as most people do, from the sidelines.

Student Activist Shareholders

As multiple emails have informed me, tonight is the Kick-Off Event for the Partnership for a Responsible Endowment (6-8pm, Room 102 of the law school). I'm taking a seminar on corporate governance at the moment, so the sight of another set of activist shareholders is mildly entertaining, if only to imagine Columbia University's getting added to an M&A defense lawyer's On Notice list.

(The "Business Casual" is from Colbert's list, but is likely to apply to the average BigLaw partner as well.)

Having just posted my belief that Columbia should take a stance on the vexed issues of the day that are fundamental to its constituents' well-being, as well as an endorsement of disinvestment as a method of bringing about change in foreign nations, I feel that I should clarify why I am skeptical of a university's taking up activism in the realm of corporate governance. I think most of the people who join the Partnership probably have a good handle on many progressive issues, such as the importance of labor and environmental standards, and I'm glad that they will push Columbia toward investing in the community that surrounds it. I think this sort of stakeholder attitude truly does serve the university's long-term interests, as we're going to be in Morningside Heights and points north for a long time and need the goodwill of our neighbors.

I'm a great deal more doubtful about whether the Partnership ought to get involved in shareholder resolutions and proxy voting guidelines. These are areas heavily regulated by the SEC and state law, so prodding Columbia to take a leadership role means more work for the university's lawyers. I'm also skeptical as to whether the Partnership will have sufficient expertise as to what is the best action to take in these areas. See below for the full email announcement:

The Columbia Partnership for a Responsible Endowment invites all interested students and student group leaders to our 2007 Kick-Off Meeting!
Wednesday, October 3, 2007, 6-8pm.
Jerome Greene Hall Room 102.
(Jerome Greene is the main Law School building on the corner of Amsterdam and 116th street. Room 102 is on the first floor near the entrance.)

Don't miss the first meeting!

Come learn more about the Partnership's goals and how the Partnership can support your organization's work. Specifically, Students for a Responsible Endowment -- the student representation in the Partnership -- brings together students and student groups from across the University to advance common goals, collaborate, share ideas, and network.

The ways in which Columbia invests its massive endowment can either support or work against progressive change. The Partnership aims to unify students, faculty, staff, the administration, and alumni in support of
responsible investment policies and principles. Through leveraging the endowment, we will bring tactical unity to many causes, allowing a voice for one progressive issue to support many others simultaneously.

The Partnership is open to new goals. Affiliated students and groups are already working to support:

October 02, 2007

Columbia and "the Vexed Issues of the Day"

Stanley Fish joins the chorus of those condemning CU president Bollinger's negative introduction of Iranian president Ahmadinejad, though he departs from the usualcomplaint that Bollinger acted as a bad host in insulting his guest. Instead, Fish argues that Bollinger acted as a bad university president. While I don't know enough about the delineations of roles among various university employees to contest whether Fish is correct to say this, he made two claims with which I do disagree:

1) The Larry Summers comparison. "But a university president doesn’t have the luxury of choosing whether to speak as a citizen or as a faculty member or as an administrator. Everything he or she says is received as the utterance of the university’s leader, and can be the basis of disciplinary action on the part of regents or trustees. (Think of Larry Summers, who ran into trouble at Harvard not because of the content of what he said, but because of the controversies his words provoked; it’s not part of a university president’s duties to provoke controversy.)"

The specific problem created by Larry Summers's remarks on women's possibly genetic difficulty with high achievement in math and science was that it was felt by some female faculty and students as demeaning and demoralizing. The very people who worked and learned under Summers's leadership were negatively affected, even though the effect was unintended. Perhaps these women were oversensitive and failed to appreciate the context of Summers's statement, but they nonetheless were a constituency that could and did raise a racket. In contrast, Ahmadinejad's hurt feelings aren't something Bollinger has to care about. Ahmadinejad has no relationship with Columbia University beyond his single visit -- he is not a student, employee, alumnus or donor. If he is made to feel unwelcome at Columbia, that may be bad hosting, but it's not bad university leadership.

2) Relatedly, Fish states, "But Columbia does not, or at least should not, stand anywhere on the vexed issues of the day, and neither should its chief executive, at least publicly." This is both factually and normatively wrong. Columbia does take a stance on controversial issues, perhaps most notably in its refusal to permit discrimination on the basis of sexual orientation and gender identity. Admittedly its early position has now been caught up to by bodies that regulate it, such as the ABA's requirement that its law school not discriminate, and New York's state and city anti-discrimination law. But it has gone beyond those requirement to stand against recruiters and employers who discriminate as well. I do not know Columbia's history on disinvestment in South Africa, but my own alma mater removed its endowment funds in order to take a stance against apartheid when that was a vexed issue.

I believe that Columbia should take a stance on certain issues -- not by declaring dissent from the University's position to be forbidden, but having an institutional commitment that nonetheless accommodates debate. For example, though the University has a very broad antidiscrimination policy, it also states, "Nothing in these policies shall abridge academic freedom or the University’s educational mission. Prohibitions against discrimination and harassment do not extend to statements or written materials that are germane to classroom subject matter." As long as students and faculty do not feel chilled from expressing their disagreement with the University's stances, I see no reason for the University to withdraw itself from issues thate are fundamental to the well-being of its constituents. Discrimination in the employment of their students is one such issue; the imprisonment of their alumni is another.

October 01, 2007

Defamation and Politics

Today I read about two odd, politicized defamation suits that both are being described as likely to fail. The first was mentioned in an AP article about an abortion clinic's opening in Aurora, IL:

Also Monday, anti-abortion activists filed a libel lawsuit against Planned Parenthood in Kane County District Court, claiming Planned Parenthood stated in a letter to Aurora officials and in at least one newspaper advertisement that opponents of the clinic had ''a well-documented history of violence and criminal activity.''
''You cannot accuse the peaceful citizens of Aurora of violent crimes and advocating violence simply because you disagree with their message,'' said attorney Tom Brejcha of the Thomas More Society of Chicago, which filed the lawsuit on behalf of 19 area activists.
Trombley said he saw ''no basis for this lawsuit'' but that he hadn't read it and so couldn't comment further.

I have read neither the activists' complaint nor Planned Parenthood's communications, but I strongly suspect that the latter were couched in generalities about the anti-abortion movement -- which does indeed have a documented history of bombings and bio-terrorism (abortion clinics were one of the few American entities that had any familiarity with anthrax pre-9/11) and has had members convicted under RICO (a friend told me that the sponsor for her confirmation in the Catholic Church was in jail the night of rehearsal, which really worried the nun in charge until she found out what the crime was). So if the clinic's opponents were libeled, it was a group libel of the type that U.S. law doesn't permit to be punished, any more than a person who identifies as a decadent coastal Leftist could sue Andrew Sullivan over nasty comments made about the group but not naming the individual. In the unlikely event that Planned Parenthood accused the 19 plaintiffs by name of each having "a well-documented history of violence and criminal activity," however, I'd expect a local jury to try to bankrupt the organization in damages.

The second suit is one that has been going for some time, with the plaintiff a Marine facing charges of unpremeditated murder while suing Congressman Jack Murtha for, among other remarks, saying about the Marines accused of Haditha civilian deaths, "[T]hey overreacted and killed a number of civilians without anybody firing at them." Other defendants included unnamed Department of Defense who may have leaked information to Rep. Murtha. Apparently to avoid the Speech or Debate Clause problem of suing a Congressman for commenting on government affairs, Sgt. Wuterich's complaint states,

20. Based on the inaccurate and false information, Mr. Murtha has made repeated statements concerning the Marines involved in the tragic incident, which included SSgt Wuterich, that are defamatory in nature. Indeed, he has even inappropriately compared the tragic events of Haditha with the infamous war crimes and deliberate wide-spread massacre of civilians at My Lai in Vietnam. Many of these comments were uttered outside of Mr. Murtha’s scope of employment as a Congressman.
21. Upon information and belief, no other Member of Congress who was provided with information pertaining to the Haditha investigation has thought it appropriate to publicly comment upon. This is due, in part – but not limited to – the inappropriateness of the circumstances and the lack of available evidence of wrongdoing. Indeed, some Congressional Members who have been provided information have specifically stated that it would be inappropriate to comment prior to the completion of the official investigations and any courts martials, should they be deemed necessary. This further demonstrates that some or many of Mr. Murtha’s comments were made outside of his scope of employment.

The claim that no other Member of Congress has publicly commented on the Haditha investigation does not appear to be true; the LA Times carried the following on May 27, 2006:

Rep. John Kline (R-Minn.), a retired Marine colonel, said there was clearly an attempt to cover up the incident by those involved. But he said he did not think the Marine command was slow in investigating.
"There is no question that the Marines involved, those doing the shooting, they were busy in lying about it and covering it up — there is no question about it," Kline said. "But I am confident, as soon as the command learned there might be some truth to this, they started to pursue it vigorously. I don't have any reason now to think there was any foot dragging."

However, I disagree with other bloggers who have said that the suit will be dismissed under the Speech or Debate Clause. The Clause does not protect activity that is not instrumental to legislative duties. The Supreme Court held in Doe v. McMillan, 412 U.S. 306 (1973), that public dissemination of materials outside the halls of Congress is not protected because it is unnecessary to the performance of official legislative actions. As far as I know, Rep. Murtha's statements were not made while he was gathering support for a bill to prohibit Marines from killing foreign civilians in cold blood (this being already prohibited under the U.S. military code and the laws of war). The Court specifically said in Hutchinson v. Proxmire, 443 U.S. 111, 130 , 132-133 (1979) that press releases and newsletters are ''[v]aluable and desirable'' in ''inform[ing] the public and other Members'' but neither are essential to the deliberations of the legislative body nor part of the deliberative process.

Wutherich's suit is further complicated by his likely status as an involuntary limited purpose public figure. He was identified by name by other people, particularly the military, but never by Rep. Murtha, and he has publicized his own story on a terribly-designed website with his name as the URL.

Fred's Federalism and Feminism

I had to give Fred Thompson credit: he gave an answer of what to do about same-sex marriage that was a lot more geared to moderate general election voters than to the Republican base. Of course, he's neck-and-neck with Rudy "Drag Queen with Gay Roommates" Giuliani in the primary polls, so perhaps he's figured that a sane position on social issues isn't the kiss of death these days in the GOP. Harkening back to his claimed federalist values, he avoided Romney's kneejerk reaction to Iowa's teetering toward same-sex marriage. Instead, according to the AP, "Thompson favors a constitutional amendment that bars judges from legalizing gay marriage, but also leaves open the door for state legislatures to approve the practice." This is precisely the approach that I recommended when Bush was hyping the Federal Marriage Amendment last year: if what really bothers you are activist judges, not homosexuals, then do something that blocks the former from inappropriate exercises of power rather than blocking the latter from democratically working their way to a simple majority that will allow them at least a facsimile of marriage. So, props to Thompson for staking out a position that has a principle rather than an animus behind it.

Federalism seems to be less of a concern for Thompson when it comes to that other major conservative issue. He has opposed a constitutional amendment banning all abortion on the grounds that the issue should be up to the states, but he voted for the prohibitions on "partial birth" abortions each time they came up while he was in Congress. Evidently there's a particular kind of abortion that oughtn't be left to the states. This is inconsistent constitutional theory. The whole point of amending the federal constitution in these post-incorporation days is to avoid leaving issues up to the states. If you believe, as many pro-lifers do, that abortion is murder (the premeditated killing of a person), then the Constitution ought to be amended to explicitly state the protected personhood of fetuses; the matter should be no more left to the states than the citizenship and voting rights of African Americans. There is no contradiction between federalism and amending the Constitution, particularly when all prior federal amendments have been passed through state legislatures.

With regard to Congress's place in regulating abortion procedures, Justice Thomas hinted in voting to uphold the PBA Ban of 2003 that had its challengers made an argument that Congress lacked the power under interstate commerce to pass the legislation, he might have voted to void it. I'm rather convinced that he was just being a tease, but it must be said for Thomas that whatever the oddities of his First Amendment beliefs, he's consistently in favor of retrenching commerce clause power. In voting for similar legislation, however, Thompson clearly is not, and he has hardened his position on abortion since his 1994 Senate run:

In a questionnaire that he answered during his successful 1994 Senate campaign in Tennessee, Mr. Thompson or his campaign staff checked a box stating that he believed abortion should be legal under any circumstance during the first three months of a pregnancy. In a televised debate the same year, Mr. Thompson appeared to tell the moderator that he personally disagreed with outlawing abortion. "Should the government come in and criminalize let’s say a young girl and her parents and her doctor?" Mr. Thompson said. "I think not."
In addition, the Gannett News Service has reported that another questionnaire submitted during Mr. Thompson’s 1994 campaign contained a handwritten note that stated: "I do not believe abortion should be criminalized. This battle will be won in the hearts and souls of the American people."

Republican presidential hopeful Fred Thompson said Friday that women should face no criminal penalties for having one during the first three months of pregnancy.
Authorities "can do whatever they want to with abortion doctors, as far as I'm concerned," the former Tennessee senator said. But "if it comes down to giving criminal sanctions to a 19-year-old girl and her mama, I'm against that."

The "mama" exception is a very peculiar one, given that mama's not pregnant and oughtn't be helping -- or worse, pushing -- her daughter toward an abortion. Of course, many parents do pressure their daughters into having abortions, whether out of sincere concern that childbirth will endanger her health or her future, or out of self-interested fear that they will be embarrassed in their community or have to help raise the resulting baby. But if abortion is wrong, surely we shouldn't condone parents' assisting their children in committing such a wrong.

There's a kind of radical feminism embedded in Thompson's light remark about "a 19-year-old girl and her mama," contrasted with the "abortion doctors." Liberal feminists like Justice Ginsburg try to push the law toward treating women equally, not toward giving them a special status. Such a seeming favor tends to bite back the recipient, like the automatic exemption from jury duty once given to women that caused them to be underrepresented on juries, and the continuing exemption from Selective Service and combat duty. A more radical feminist perspective, however, dismisses de jure equality as a distraction from the fact of women's ongoing social, political and economic subjugation to men (much as Marxist theory dismisses the modern welfare state as an impediment, not a way station, to the revolution). Indeed, given that de facto inequality, radical feminists theorize that legal equality hurts women by forcing them into a pretense that they are not disadvantaged and in different situations than men. One of the more extreme examples I have seen of this is Susan Brownmiller's defense of the false rape accusers in the Scottsboro case, on the ground that because the women were being oppressed by white males, they needed to be able to cry rape on black boys.

I doubt that Thompson is going on much more than his gut about what voters want to hear, but he sounds weirdly reminiscent of Robin West, of all people. In her essay "Jurisprudence and Gender," West argued that modern legal theory is inherently masculine because it assumes that human beings are distinct from one another, when in fact women are connected to other human beings, most literally through pregnancy. West is infamous in some quarters for taking the concept of fetus as human being so far as to describe it as metaphorically invading an unwilling woman's body: "The argument that the right to abortion mirrors the right to self defense falls on deaf ears for a reason; the analogy is indeed flawed. The right of self defense is the right to protect the body's security against annihilation liberally understood, not invasion. But the danger an unwanted fetus poses is not to the body's security at all, but rather to the body's integrity."

If Robin West were arguing Thompson's position on the criminalization of abortion, she might say that the dread of invasion can only be women's, so that the pregnant 19-year-old and her mama (intimately connected to the pregnant woman) ought not suffer under legal penalties for what they do to remove that harm. But the abortion doctor is not part of any intimate relationship to which the fetus poses a threat of intrusion, so he or she could be penalized.